Forum: Top Up Fees - Elderly Client Adviser

Feature

posted 1 Jul 1998 in Volume 3 Issue 5

Forum: Top Up Fees

We have received numerous letters over the past two weeks asking us to comment on an article within the "Money Go Round" section of the Sunday Telegraph (21/6/98). The article by Paul Lewis is entitled "Payment gap threatens the old" recounts the tale of an elderly care home resident who has a small pension and capital that originally totalled £30,000 and is now around £16,000. The lady in question had been funding her own care home fees of just under £300 per week.

When her capital fell to £16,000, the family asked the Local Authority to step-in. They duly carried out an assessment and agreed that care was required, but that the maximum weekly fee they could pay would be £235, leaving a shortfall of £65 per week. The lady was happy and settled in her present care home and did not want to leave. She was willing to make up the shortfall from her capital. The Local Authority are preventing her from doing so.

The article refers to a Department of Health circular issued in March that stated that the previous guidance, dating from 1992, was "misleading" and that it was their view that the law does not permit a resident to pay for more expensive accommodation than the local authority would be prepared to pay for. This does appear to run contrary to the earlier guidance which stated that "there is no reason why local authorities should not, at the request of the resident, arrange more expensive accommodation for someone who can afford the additional cost from their own resources".

The article goes on to raise the spectre of 3,000 frail and elderly people being moved from "the place they have chosen to live". Yet it finishes with a quote from the Department of Health confirming that they will not be expecting existing residents to move.

ECA asked Anne Edis and Margaret Richards to comment and give their views on this extremely complex issue.

Comment

Although, in the opinion of the Sunday Telegraph, the local authority's position appeared contrary to an earlier 1992 guidance, this in fact has never been the case. It has always been the situation that residents are not able to top-up their own fees. This is clear from the National Assistance Act 1948 (Choice of Accommodation) Directions 1992.

The Charging for Residential Accommodation Guidelines No. 9 paragraph 8 make it abundantly clear that residents should not top-up their own fees. Any third party top-up should in fact be 'clean' and entirely divorced from the service user. Local Authorities are recommended as best practice to have separate contracts or agreements with third parties.

In the event quoted, it is most unlikely that local authorities would move frail and elderly people unnecessarily from the place where they have chosen to live and may have lived for some time. They are obliged, under the National Assistance Act 1948 (Choice of Accommodation) Directions 1992 to take into account the issue of choice. That circular also refers to the issue of topping-up. The situation has not changed radically since 1992. It is clear that many people have been misled by the information available and this highlights the importance of going to primary legislation, guidance and directions before advising clients. Getting it right is less costly for both the client and the professional.

When residential accommodation is provided under the National Assistance Act 1948, people do have the right to choose their accommodation. If they are supported by the authority then, normally, it would be expected that the accommodation would fall within the band which the local authority would normally expect to pay for someone who suffers from the resident's particular condition. However, it is always possible to choose a more expensive home provided there is a third party arrangement in place, but such an arrangement must be on the understanding that, if the third party fails for some reason to meet the fees, then the elderly resident could in certain circumstances be moved from that home.

It would be a matter for the authority to discuss and to review each individual case; such as moving a resident from an existing placement, particularly when that resident had been there for some time. Every endeavour would be made to find an alternative means of funding the place in order to maintain the resident there. Moreover, an assessment of that resident's needs might well indicate a change in the care banding or the care plan which could have an effect on the contribution made by the local authority.

I therefore find that the Sunday Telegraph's view is quite unnecessarily scare mongering as is often the case in the media. Local authorities are frequently made scapegoats by the media, for issues which, when the reality is investigated, prove not to be the case.

It is an interesting commentary that the numbers of homes being sold to fund residential care has remained remarkably constant since community care came in and, moreover, it should be noted that very few members of the older population actually go into residential accommodation, it being something like 6% of the total elderly persons population.

Where difficulties are becoming apparent, discuss matters with the relevant local authority, this will often ensure that the client's placement is not only appropriate but also more secure. Discussion and negotiation will often assist in making sure that the client's placement is appropriate and long-term. At the end of the day, the local authorities want to do the best they can for their clients to ensure that they are placed appropriately and receive the right levels of care. Remember that most local authorities would prefer discussion and negotiation rather than the confrontational approach. Don't leave it too late to talk issues through.

Readers of Elderly Client Adviser should be advised that we are inviting the views of Directors of Social Services on some of the issues in and around the provision of services for elderly persons and this, we hope, will throw light on best practice; which is what many local authorities are carrying out.

Anne Edis

Comment

The background to all this is the NAA (Choice of Accommodation) Directions 1992 which state that older people who need residential care, which is to be arranged by the local authority (LA) under the NAA 1948, have a right to choose their accommodation, provided that it does not cost more than the LA would usually expect to pay for accommodation that is appropriate to meet their needs. So if an older person chooses a nursing home costing £500 per week, and the LA would usually purchase nursing home care at £350, it is not obliged to arrange the preferred placement. Even then, however, the Direction says that a "third party's contribution" which is at least equal to the difference between the fees in the chosen home and the LA's price, may be accepted to allow the chosen placement to go ahead. "Liable relatives" (spouse's) contributions are not acceptable.

The guidance to LA's, (LAC(92)27) which was issued alongside these directives goes further than this, saying that there is no reason why LA's should not:

"at the request of the resident, arrange more expensive accommodation for someone who can, from their own resources, afford to pay the additional cost" (Para 11-14).

This implies that the resident who has chosen the £500 per week home may pay the £150 shortfall over and above the LA's standard price out of his or her capital below £16,000. The problem is that in these circumstances the LA will be subsidising the resident anyway, and there is arguably some incongruity in a situation where public funds are supporting an arrangement which the LA considers more expensive than is necessary to enable it to discharge its responsibility under the NAA 1948, and which depends on the resident using up her/his remaining capital. Once that capital is exhausted the LA is either forced to allocate expenditure unfairly on a placement which is not strictly "necessary", or take the risk (with attached criticism or blame) of moving the resident to a cheaper home. This is an invidious position for the LA.

Now the DoH has issued fresh guidance (CRAG amendment No.9) which makes it abundantly clear that residents should not top up their own fees. The DoH's position seems to be that its previous guidance (technically permissive) went beyond the wording of the Directions on Choice (mandatory) and that residents own top ups are unlawful. In fact the Directions do not refer to this issue at all, and the NAA itself is also silent. However, given that the Directions do extend resident's rights in respect of public funding it is arguable that provisions which they do not contain are appropriately ruled out. This is not the only situation where issued guidance goes beyond regulations or directions, and it raises interesting questions of principle.

Pragmatically, it must be remembered that, when the Directions were issued, the residual capital level under the charging regulations was set at £3,000, so that it was usually quite unrealistic to consider anything other than a third party arrangement. Clearly, residents' own top-ups have been more readily acceptable since 1996, when £10,000 free capital was permitted.

In Conclusion

LAC (92) 27 always made it celar that it third party arrangements break down for some reason, the LA is entitled to consider moving a resident to cheaper accommodation. In addition any third party arrangements is at the LA's discretion, and a separate third party agreement will always be required (para 11-09). The new guidance operates as from now. Arrangements already made will, as always, be subject to the descretion of the LA. Given that a residents needs may, over time, incorporate the need to remain settled where s/he is. The LA will not lightly create an upheaval. However since it is no longer considered lawful to receive a residents' top up, even uder a pre-existing arrangement, the shortfall in fees will have to be met from the LA's resources if the placement is maintained.

Margaret Richards